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					                                          DIVORCE

SUBJECT: Divorce

PURPOSE: To provide Legal Assistance clients with information regarding divorce.

REFERENCES:
 www.legalaid-ga.org
 Georgia Constitution Article VI. Section II. Paragraph V on Venue
 Georgia civil practice act: O.C.G.A. §9-11-2 through §9-11-14
 O.C.G.A. §19-5-2 through §19-5-17

DISCUSSION:

   What are the grounds for divorce?

       o In Georgia, irretrievable brokenness is grounds for a divorce. There is no separation
         period necessary before filing for a divorce in this state. Not all Fort Stewart Soldiers
         will be able to file for a divorce in Georgia. Before being allowed to file for divorce
         in Georgia, the parties must show that they are subject to the jurisdiction of the court.
         You will need to consult a legal assistance attorney to determine in which state you
         should file for a divorce. Some states still have traditional grounds for divorce where
         one party has to prove that the other party had engaged in some sort of misconduct,
         such as adultery, desertion, or cruelty. This misconduct was called the "ground" for
         the divorce. Some states retain these so-called "fault" grounds and require that one of
         them exist before a divorce will be granted. Many of the fault-ground states will have
         one exception to this rule if the parties have been voluntarily separated, usually for a
         year or more. However, most states have adopted "no-fault" grounds such as
         irretrievable brokenness. In these cases no misconduct needs to be shown. The
         parties tell the court that the marriage is irretrievable broken.

       o Because it takes the voluntary involvement of two persons to make a successful
         marriage, a statement by one that irreconcilable differences exist constitutes strong
         evidence that the marriage is broken, regardless of the feelings of the other party
         about a divorce. Thus, if one party goes to court and sues for divorce, it is almost
         impossible for the other party to prevent the divorce. The other party may, however,
Information Brief is distributed by the Fort Stewart Office of the Staff Judge Advocate, Legal
Assistance Office, located at 1791 Gulick Ave., (Bldg 709). Consult an attorney for specific
legal advice for your particular situation. Our office hours are: 0830 – 1600, Mon, Tues,
Wed, Fri, and 1300-1600 on Thursdays. You may call us for an appointment at 912-767-
8809/8819. You may contact the Hunter Army Airfield Office at 912-315-5115.
           appear in court for the purpose of securing the most advantageous settlement of
           matters such as property division, support, and child custody.

   What is the procedure by which a party obtains a divorce?

       o The spouse desiring the divorce is called the "petitioner" or “plaintiff” and files a
         divorce complaint with the court. The other party is called the "respondent" or
         “defendant”. The respondent is officially notified of the divorce proceedings,
         normally by sheriff or by certified mail, and is given time to file a response with the
         court. This varies from twenty to sixty days depending upon state law and the
         method of service.

       o A court date is then set and the matter heard by the court. Frequently, the respondent
         fails to file a response to the petition submitted to the court by the petitioner. In such
         a case the respondent is said to "default".

       o If the respondent defaults, the court will proceed and usually grant the divorce on the
         terms (child support, alimony, child custody, property division) requested by the
         petitioner. It is very important, therefore, for the respondent to file a response if he or
         she does not agree with the terms proposed in the petition submitted by the petitioner.
         If the respondent contests the divorce action by filing an answer denying one or more
         of the statements in the complaint, a hearing will be set during which the two of you
         can testify and the judge rules on the outcome.

   In what state do I file for a divorce?

       o You must file in a state court which has "jurisdiction" or control over at least one of
         the parties. Most states have laws which provide that divorce suits can be brought in
         their courts when one party to the marriage is a domiciliary of the state. Most states
         also provide that such suits can be brought when one party to the marriage has resided
         in the state for a specific length of time, normally six months to a year. Some states
         have a special provision allowing persons stationed there under military orders to file
         in their courts. Historically, a wife was presumed to have the same domicile as her
         husband. Today, many states recognize that a wife may have her own domicile. Talk
         to a Legal Assistance Attorney if uncertain where you should file. Remember, if you
         are seeking alimony or child support from your spouse, the divorce must be filed in
         the spouse’s place of residence in order to be enforceable.

   What if my spouse will not agree to a divorce?
      o Your spouse cannot prevent you from filing a divorce complaint with a court to
          initiate a divorce action. Ultimately, the judge is the person who grants a divorce, not
          your spouse.



Information Brief is distributed by the Fort Stewart Office of the Staff Judge Advocate, Legal
Assistance Office, located at 1791 Gulick Ave., (Bldg 709). Consult an attorney for specific
legal advice for your particular situation. Our office hours are: 0830 – 1600, Mon, Tues,
Wed, Fri, and 1300-1600 on Thursdays. You may call us for an appointment at 912-767-
8809/8819. You may contact the Hunter Army Airfield Office at 912-315-5115.
   Can a military attorney obtain a divorce for me?

       o No. A legal assistance attorney can frequently assist you in preparing your divorce
         and can provide basic advice on divorce matters. For Sergeant (E-5) and below, we
         can also assist you in completing the petition for divorce in many uncontested divorce
         cases in which there are no children, there is no real property, and both parties agree
         to all terms. The Legal Assistance Office can only see whichever spouse seeks
         advice from our office first. Other attorneys are available to provide legal advice to
         the other spouse. The military does not have the power to grant your divorce, and a
         military attorney cannot appear with a client in court. If you are trying to find a
         private attorney, we recommend that you have a close friend or relative in the state
         approach an attorney on your behalf. The fees are likely to be more reasonable and
         the work will be completed more quickly when there is a personal representative in
         the area.

   Can I represent myself in my divorce?

       o Representing yourself in your own divorce is possible and can work in certain
         circumstances, but only with adequate preparation, knowledge, and effort on your
         part. Legal Assistance Attorneys can advise you on self representation known as
         “pro se” representation. Beware of paralegals and document services which offer to
         prepare legal documents for you—this is considered the unauthorized practice of law,
         and is forbidden by many states. If you and your spouse have a simple divorce and
         can agree on how to split up property and other issues, you may be able to prepare
         your own divorce. Other cases are much more complicated—ones where the couple
         fights over homes, retirement plans, child custody, and other issues. Sometimes there
         are complications which only an attorney would notice. Here is a link to an online
         quiz which will help you decide whether you are capable of representing yourself:
             http://www.peoples-law.org/family/divorce/self%20quiz.htm.
         If you are obtaining a divorce in Georgia, additional information on divorce can be
         found online at www.legalaid-ga.org. This site has links to information on obtaining a
         divorce in many other states as well.

   Who pays for my lawyer?

       o As a general rule, you must retain and pay for your own attorney in a divorce case.
         The charge to obtain a divorce varies widely depending on a number of factors
         including the attorney’s experience, the complexity of your case, if the divorce is
         contested or uncontested, if there are children involved, and what type of property
         needs to be divided.

   If my spouse is a Soldier, can he/she delay the proceedings?



Information Brief is distributed by the Fort Stewart Office of the Staff Judge Advocate, Legal
Assistance Office, located at 1791 Gulick Ave., (Bldg 709). Consult an attorney for specific
legal advice for your particular situation. Our office hours are: 0830 – 1600, Mon, Tues,
Wed, Fri, and 1300-1600 on Thursdays. You may call us for an appointment at 912-767-
8809/8819. You may contact the Hunter Army Airfield Office at 912-315-5115.
       o Under the Servicemembers Civil Relief Act, some states will grant Soldiers a delay of
         up to six months or longer so he or she can obtain a local attorney. Others, however,
         will merely appoint an attorney on the spouse's behalf so the divorce can go forward.
         Still others will issue temporary custody, restraining and support orders to compel the
         spouse to get to court more quickly and to enable you to survive until a final hearing
         can be scheduled.

   Is my divorce final when the judge signs the judgment?

       o Depending upon state law, a divorce may be effective immediately or there may be a
         waiting period of up to six months after signing, in which case there is an
         "interlocutory" decree. If “interlocutory”, parties must obtain the final decree after
         the waiting period expires. Otherwise, if you remarry without this final decree, you
         could be committing bigamy (married to two persons at the same time).

   Can I resume use of my maiden name?

       o Yes. Any name change request should be incorporated into the divorce papers your
         lawyer files. Some courts will not allow a wife to change her name if there is a minor
         child or children bearing the husband's name. Most, however, will not restrict you in
         this way. Remember, it is cheaper to include the change of name in the divorce
         petition itself, rather than be forced to bring a separate action later.

   Do I need a "legal separation" or separation agreement to get a divorce?

       o It will depend on your state. In Georgia you do not need a legal separation or a
         separation agreement to get a divorce. However, laws in a few states, including
         Georgia, enable parties to obtain a divorce in less time and with more ease if there is a
         separation agreement.

   Can the judge order a property division at the time of divorce?

       o Yes, however, what property is subject to being divided may depend on the state
         where the divorce is filed. In some states the judge cannot divide "separate property,"
         which includes property acquired by either party before the marriage, by gift or by
         inheritance, even if it is later traded or exchanged for another item. Business and
         professional licenses may also be separate property if they cannot be transferred to
         another individual. Marital Property is always subject to division. There is a
         presumption that the fairest split would be an even division of all the marital property,
         regardless of who has title to the property, who paid for it, and so on. Under certain
         circumstances, however, the judge may decide that a fifty-fifty split is not fair to one
         or both of the parties. Many statutes have a list of factors that the judge may use to
         determine an equal division of property between the couple. The judge will consider
         such matters as monetary and homemaker contributions to the marriage by each

Information Brief is distributed by the Fort Stewart Office of the Staff Judge Advocate, Legal
Assistance Office, located at 1791 Gulick Ave., (Bldg 709). Consult an attorney for specific
legal advice for your particular situation. Our office hours are: 0830 – 1600, Mon, Tues,
Wed, Fri, and 1300-1600 on Thursdays. You may call us for an appointment at 912-767-
8809/8819. You may contact the Hunter Army Airfield Office at 912-315-5115.
           party, tax consequences of an unequal division, whether alimony or child support is
           presently being paid, the source of property, who purchased it, and so on. Debts
           accrued by either spouse during marriage are usually considered joint liabilities and
           are generally divided equally by the court.

   Will the court make a determination regarding child custody and support?

       o Yes, if the parties agree on these terms, the court may accept them if it considers the
         agreement to be in the best interest of the child. If not, it will make a decision based
         on the best interest of the child. It can award custody to one parent or to both parents
         jointly. The primary element of joint custody is that both parties retain authority in
         management and control of the child and share the physical custody. Child support
         will vary depending upon such factors as the income and debts of the parties and the
         particular needs of the child. Both terms are subject to modification by the court
         upon a showing of changed circumstances and proof that such modification is in the
         best interest of the child. Parents, however, do not have the right to waive child
         support on behalf of their children.

   Will the court grant spousal support or alimony?

       o Spousal support is available in any case in which a court deems it appropriate.
         However, it is no longer a standard provision. The court will look at factors such as
         the length of the marriage, the education of the parties, their ability to work, and who
         has custody of the child in making a determination. Spousal support may be either
         temporary or permanent. Depending upon state law the fault of a party may be
         relevant to the issue.

   Does the military require my Spouse to provide support for me and my children during
    the divorce process?

       o If you do not have a court order, Army Regulation 608-99 requires that the military
         member provide support for his dependents. Please review the family support
         information paper available from your legal assistance office.

   What military benefits will non-Soldier spouses and children retain after divorce?

       o You will lose your benefits upon divorce and must surrender your identification card.
         However, under the Uniformed Services Former Spouses' Protection Act, if you have
         been married for 20 years and your spouse has been in the service for those 20 years,
         you are authorized commissary, post exchange, and theater privileges. If you are not
         in an employer sponsored health care plan, medical benefits may also be extended.
         These medical benefits are also available to you if your spouse was in the service for
         20 years, you were married for 15 of those years, and you were divorced before April


Information Brief is distributed by the Fort Stewart Office of the Staff Judge Advocate, Legal
Assistance Office, located at 1791 Gulick Ave., (Bldg 709). Consult an attorney for specific
legal advice for your particular situation. Our office hours are: 0830 – 1600, Mon, Tues,
Wed, Fri, and 1300-1600 on Thursdays. You may call us for an appointment at 912-767-
8809/8819. You may contact the Hunter Army Airfield Office at 912-315-5115.
           1, 1985. Individuals divorced on or after April 1, 1985 may get such medical benefits
           only for a year from the date of the divorce.

       o If your spouse fails to provide court-ordered support after you are divorced, you can
         obtain a garnishment order from a court and the U.S. Army Finance and Accounting
         Center will forward up to 50%-60% of your ex-spouse's disposable income directly to
         you until all back payments are paid in full. Your children will also retain their
         military benefits until age 18 or 23, if they are enrolled full time in college.

   Is it possible to have my marriage annulled?

       o Only in rare instances may a marriage be annulled. Annulment is a process by which
         a marriage is declared invalid on grounds established by state law. The party seeking
         annulment must go to court and the annulment must be ordered by the court.
         Although state laws differ, the following reasons are common grounds for annulment:

                  At the date of marriage one party was underage and had not obtained the
                   necessary consent of a parent or legal guardian.

                  One or both parties were already married to somebody else at the time of the
                   new marriage.

                  The consent of one of the parties to the marriage was obtained by fraud or
                   force.

                  One party was, at the time of marriage and still is, incurably impotent.

   Soldiers or civilians who are parents of children younger than 18 years old and wish to
    receive a divorce from a superior court of the Atlantic Judicial District (which includes
    Liberty, Tattnall, McIntosh, Long, Evans, and Bryan counties) must receive counseling prior
    to obtaining the divorce.

   Counseling services are provided free of charge by Army Community Services (ACS)
    through Fraser Counseling Center.

   How do I protect my credit after my divorce?

       o The incidence of ex-spouse default on marital debt is quite high. Whatever the
         reasons, it is important for the non-debtor spouse to understand how to protect
         himself or herself. Under the law, creditors are not usually bound by the distribution
         of debts in a divorce decree. This means that they are free to pursue collection
         activities against any party that is named on the account. Thus, if your ex-spouse
         defaults on the car loan, you may end up being sued for any deficiency arising from
         repossession if you are also a named party on that car loan.

Information Brief is distributed by the Fort Stewart Office of the Staff Judge Advocate, Legal
Assistance Office, located at 1791 Gulick Ave., (Bldg 709). Consult an attorney for specific
legal advice for your particular situation. Our office hours are: 0830 – 1600, Mon, Tues,
Wed, Fri, and 1300-1600 on Thursdays. You may call us for an appointment at 912-767-
8809/8819. You may contact the Hunter Army Airfield Office at 912-315-5115.
       o There are ways to protect yourself. First you should contact all creditors whose
         accounts your ex-spouse is now responsible for. Inform them in writing that the
         liability for the debt now rests with him or her. Make sure to enclose a photocopy of
         the divorce decree. In your letter, request that your name be taken off the account.
         The creditor is not required to do this, but they often do. Additionally, if they fail to
         respond, they will often be prohibited by courts from enforcing the debt. Another way
         to protect yourself, if you find out that your ex-spouse is defaulting on debts, is to
         have your attorney request that the Court cite your ex-spouse for contempt. Your ex-
         spouse will only be able to purge the contempt charge by paying the debt.
         Additionally, this entitles you to receive costs and attorney’s fees. Finally, if you are
         sued, you can bring your ex-spouse into the lawsuit through a legal mechanism
         known as “impleading.” This forces him or her to become a co-defendant, and, if
         judged liable, you can recover your losses.

   Expiration. Because the law is constantly changing by legislative enactment and court
    decision, you should obtain an updated version of this paper if it is more than one year old.

   Last Updated: 1 APR 2011, HWJ




Information Brief is distributed by the Fort Stewart Office of the Staff Judge Advocate, Legal
Assistance Office, located at 1791 Gulick Ave., (Bldg 709). Consult an attorney for specific
legal advice for your particular situation. Our office hours are: 0830 – 1600, Mon, Tues,
Wed, Fri, and 1300-1600 on Thursdays. You may call us for an appointment at 912-767-
8809/8819. You may contact the Hunter Army Airfield Office at 912-315-5115.

				
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